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Thursday, February 14, 2013

WHAT CONSTITUTES A DWI IN NEW YORK STATE?

New York State's penalties on driving while intoxicated vary
depending on the level of intoxication, the age of the driver and
passengers, location of offense and prior convictions. But various types
of conduct can actually get you charged with a DWI, even if you were not driving a vehicle at the time you were stopped by police.
New
York DWI laws include the "common law" theory, which is based on police
observation of impairment, and the "statutory DWI charge," which occurs
when a test is administered to determine that a driver's blood alcohol
content is above the legal limit of .08. Police determine blood alcohol
content levels through either a Breathalyzer, urine, blood or saliva
test. Refusing a BAC test usually results in a revoked license.

Driving Stopped and Sleeping Arrested for DWI

In
October, a defendant was arrested for driving while intoxicated after
New York State troopers found him asleep behind the wheel of his running
car. The police noticed his vehicle was only partially parked and
was blocking the traffic lane.
Upon finding the driver, the police
reported smelling alcohol. He was charged with a
felony DWI due to his previous DWI conviction in the past ten years. He faces a potential maximum sentence of four years in jail.
In this case, the DWI defense
attorney might argue that the driver was not "operating" his vehicle but
sleeping in it. But while the exact definition of "driving" or
"operating" a vehicle is arguable within DWI laws, most courts have
ruled that a conscious person sitting behind the wheel with the keys in
the ignition is in operation of or intends to operate the vehicle.

Other Scenarios Where Drivers Might Be Charged with DWI

In
most cases, if a driver has control of a vehicle's keys and is in or around the car, courts have ruled that the driver is, by law,
operating the vehicle. But in some other states, courts have dismissed a
DWI charge after the driver was proved to have not been driving on the
"roads and highways" included in the language of the law, but on
ditches, frozen lakes, parking lots and driveways.
Drivers who
drive at or below the legal limit can still be charged with a drunk driving
offense. New York law states that drivers with a BAC of .05 to .07 are
below the legal limit, but are guilty of driving while alcohol impaired
or DWAI.
Drivers under age 21 will be charged with DWI if found to
have any traces of alcohol in their system while driving, known as the
Zero Tolerance Law.
If you have been arrested or charged with DWI
or a drunk driving offense in the Buffalo Area of New York State, contact an experienced DWI
attorney, J John Sebastian.